204
The Green Bag
of the fellow-servant doctrine and the liability stitutional provisions, and can receive the fina of the employer for an accident which is approval from the courts of the land. That due to a risk inherent to the trade. As such a plan, at least for the present, must be Senator Sutherland, the chairman of the based upon the elective system seems for the Federal Employers' Liability Commission, present both advisable and necessary tersely puts it, in the one case the master is held That the elective system involves some difficulties responsible for the fault of the dangerous agent of administration not inherent in the compulsory and in the other for the fault of the dangerous plan must be admitted. But the elective sys agency. Conceding, as the [New York] Court tem does recognize the fundamental principle of Appeals does, that the legislature may abro upon which all workmen's compensation rests, gate the defenses both of common employment of payment for accidents that occur without the and of ordinary contributory negligence, it is fault of the injured. The recognition of that inconsistent to hold that the legislature cannot principle in the law, coupled with any provision create the liability which was proposed to be for a sure payment of a limited compensation, is created by the New York act." a distinct advance upon the present system The writer gives some attention to optional of employers' liability, and perhaps all the ad vance that should be attempted until the prin systems of Workmen's compensation: — ciple of workmen's compensation can be tested "The legislature proposes to have justice ad by practical operation in American industries." ministered to two parties to the same relation upon different terms, offering to each conditions "The Wisconsin Workmen's Compensation unfavorable to him and giving him the chance Law Sustained." By A. W. Richter. Journal of redeeming himself by declaring his willingness of Political Economy, v. 20, p. 180 (Feb.). to accept the new method of relief. Either the Discussing the decision in Borguis et al. v. legislature has the power to compel compensation — can it then exercise this compulsion in the The Folk Co. (133 N.W. Rev., adv. sheets, no. 3, roundabout way of denying justice except upon p. 1) the writer says: — terms not applied to all alike? — or it has no "On the whole the decision is all that the ad such power; can it then do by indirection what vocates of workmen's compensation could wish it cannot do directly? This serious question for; the plan as worked out is sustained in toto, goes to the very root of the laws of Illinois, Kan and the United States sees its first constitutional sas, Massachusetts, New Hampshire, Ohio, and workmen's compensation law of general applica Wisconsin. In New Hampshire the difficulty tion in operation — a law which, though elective, is aggravated by the fact that the employer, be offers such important inducements to both em fore he can elect to come under the act, must ployer and employee that it is likely to find very establish his solvency by filing a bond condi general application and, in time, to be the sole recourse of our great army of industrial workers." tioned upon the discharge of his liabilities." "Legislating for Labor." By Richard Barry. "A Problem in the Drafting of Workmen's Hampton Magazine, v. 28, p. 105 (March). Compensation Acts." By Francis H. Bohlen. "In nearly every state in this Union the Eng 25 Hansard Law Review 328 (Feb.). The phraseojogy of the English acts of 1897 lish common law is the basis of all action in the and 1906 is widely supposed to have acquired courts. A great system of jurisprudence, in by judicial construction a simple, fixed meaning, deed; perhaps as just and mighty a system as but by considering the decisions Mr. Bohlen was ever devised. But it is a human system, and therefore fallible; most especially that part reaches the conclusion that in view of the deci sions holding that disease suddenly contracted of it which deals with a terrible industrial con is an injury by accident, the words "injury by dition which has grown up since the system was accident" should not be blindly retained without devised." See General Jurisprudence, Industrial Acci qualification. Furthermore, the term "by acci dent" differs from the term "accidental" in that dents. "it requires that the injury shall be sustained on a single particular occasion the date of which Miscellaneous Articles of Interest to the can be fixed, and so excludes any injury, whether the disturbance of the physical structure of the Legal Profession body, or disease, which is of gradual growth." American Traits. "The Middle West; II, "Workmen's Compensation in Michigan." The Reassertion of Democracy." By Prof. By Hal H. Smith. 10 Michigan Law Review Edward A. Ross. Century, v. 83, p. 686 (Mar.). 278 (Feb.). "The tendency toward unity of institutions "Whatever may be said as to the effect as all over the nation is stronger now than ever precedents of the opinions of the Massachusetts, before. Twenty years ago who expected there Washington, and Wisconsin courts, it can, we would ever so be much populistic opinion along think, be safely predicted that the activity of the the Hudson or so much capitalistic sentiment legislatures of the several states and of Congress along the Missouri as there is today? If, then, urged on by the tremendous public sentiment the past is a safe guide, we may look for the East that appears to be behind the movement for to be shaken presently with the same democratic workmen's compensation, will ultimately result revolution that is accomplishing itself in the in some plan which will not run counter to con states of the Far West and the Middle West.
